Untangling "sexting" and child pornography can be a tricky legal matter. …

Share this story

The difference between "sexting" and "child pornography" might seem obvious, but it's not. Take one common metric for labeling something "child porn"—was it produced voluntarily? That question has its limits.

Adults can (and do) convince minors to take sexually explicit pictures by webcam, for instance. Or they acquire pictures of kids that were created voluntarily for a boyfriend or girlfriend but were later forwarded to others or posted on the 'Net (after a bad breakup, say). Though the image might look exactly like child pornography, asking "how was this produced?" might make it difficult to prosecute those who collect and view child porn.

As a recent Harvard overview of sexting and the law notes, "Every adult who possesses or trades in child pornography could claim that the images are protected by the First Amendment, unless the government can prove they were not taken voluntarily by minors, for minors."

The paper, "Sexting: Youth Practices and Legal Implications" (PDF), was authored by Dena Sacco, the former Assistant US Attorney for Massachusetts who took the lead on child porn and obscenity cases in the states. It looks at how states might respond (and have responded) to sexting, and it cites plenty of complicated cases that go far beyond the typical "high school girl sends topless photo to boyfriend" routine. For instance:

"In Massachusetts, police were considering criminal charges after an eighth grade girl sent pictures of herself to her eighth grade boyfriend, who then sold the images to other children for $5."

"In Virginia, two male high school students, aged 15 and 18, were charged with possession of child pornography and electronic solicitation for nude and semi‐nude images of minor girls contained on cell phones after they actively solicited the photos from younger female students for trade among themselves."

In Florida, "an 18‐year‐old high school senior who had recently broken up with his 16‐year‐old girlfriend e-mailed everyone on his ex‐girlfriend’s email contact list nude images that she had originally e-mailed only to him. He was convicted under state child pornography law and required to register as a sex offender."

"In Wisconsin, a 17‐year‐old boy was charged with possession of child pornography after posting naked pictures of his 16‐year‐old ex‐girlfriend online with captions [crude captions deleted]."

"Also in Wisconsin, an 18‐year‐old was sentenced to 15 years in prison for an extortion scheme in which he tricked male classmates into sending him nude photos of themselves and then blackmailed them with exposure if they refused to have sex with him."

Given the diversity of sexting practice, what's a government to do?

Three approaches

New Jersey is considering a pair of bills that focus on education, both at school and at... cell phone stores? The state might "prohibit the sale of cell phones in retail stores that do not provide pamphlets on sexting to customers," according to the Harvard paper.

In 2009, Missouri decided to make it a misdemeanor for anyone to use a "telecommunications device knowingly or recklessly to create, receive, exchange, send or possess sexually explicit images of a minor—themselves included."

Colorado decided that people would be in the clear unless "the offender [knew] or believed that the child was younger than 15 years old at the time of the offense and the offender must have been at least 4 years older than the child."

Sacco outlines three basic legal strategies that states can pursue. First, they could simply redefine child porn to exclude voluntarily produced sexting. As noted above, this is tricky because "once it is out of the hands of the minors involved, a sexted image is indistinguishable from any other sexually explicit image of a minor." Focusing on the production of the image does nothing to address distribution and consumption, and it's easy to imagine those with a hunger for child porn sating themselves through galleries of sexted images.

Second, states can roll sexted images into the "child pornography" category. Sacco outlines some thoughtful reasons for doing this based on the harm to children caused by even voluntary images that will exist "for years to come." She also notes several surveys that show girls often feel pressure to provide sexually explicit photos to boys in a way that boys do not feel in return.

But stepping in to prevent kids from doing stupid and harmful things can also be an overreaction, especially in the less-controversial cases where material is kept between romantic partners. Should they really be exposed to the full power of the law for taking photos of behavior that is itself legal? Just being registered as a sex offender can have significant impacts on one's life.

Third, there's a "middle way" approach in which the government can criminalize all such images as child pornography, thereby avoiding all the hassle about "production" and "intent" and "coercion," and focusing only on the final product. At the same time, the law can grant "affirmative defenses" to those accused of such behavior. This could allow those who take pictures of themselves or who intentionally transmit pictures to particular people to escape prosecution, and it's an approach already under consideration in several state legislatures.